OSHA Proposes to Delay Recordkeeping Rule

OSHA has officially announced a proposal to delay the reporting requirements of its “Improve Tracking of Workplace Injuries and Illnesses” recordkeeping rule that was issued last July.

The recordkeeping rule simply requires employers already covered by OSHA’s recordkeeping requirements to send the form 300A (Summary of Work-Related Injuries and Illnesses) to OSHA and then OSHA would publicize the information on its website. The rule also prohibits employers from retaliating against workers for reporting injuries or illnesses.

Employers were originally required to send their information in to OSHA by July 1. OSHA announced its “intention” to delay reporting last month. The non-retaliation part of the standard, which generated intense industry opposition, may not fare as well. That part of the regulation is in effect, but OSHA states in this proposal that it “intends to issue a separate proposal to reconsider, revise, or remove other provisions of the prior final rule.” So stay tuned for that.

OSHA justifies the delay by stating that it “will allow OSHA an opportunity to further review and consider the rule” and that the delay “will allow OSHA to provide employers the same four-month window for submitting data that the original rule would have provided.” OSHA had originally planned to post a website last February so that employers would have four months to submit the data to meet the original July 1 deadline, but the new administration refused to put the website up.

It is not clear whether this delay will satisfy industry objections to making this information publicly available. An industry coalition filed a petition last month requesting that DOL stay both parts of the rule and re-open rulemaking because collecting the information allegedly “exceeds OSHA’s statutory authority” and “will have an adverse impact one workplace safety and health.” According to the petitioners, the rule would reveal confidential information and prohibit employers from conducting post incident drug testing and establishing incentive programs. The petitioners were the Chamber of Commerce, the National Association of Home Builders, the National Chicken Council and several others. None of that is true, of course, but attorneys must send their kids to college.

There are some amusing parts to the announcement (And I admit to being one of the few people in the world who can find humor in the Federal Register.)

On one hand, the agency is claiming a whopping $6,953 to $19,177 in cost savings based on the interest that employers will save during the five months they don’t have to spend money sending the information in to OSHA. (Those would be national costs savings, not per employer.) They therefore claim that this effort is “deregulatory.”

They do not, however, claim any benefits lost by the fact that workers and employers will not be able to enjoy the benefits of the regulation during the five month delay. The benefits claimed under the rule include 1) improvement of OSHA’s ability to identify, target, and remove safety and health hazards, thereby preventing workplace injuries, illnesses, and deaths. 2) improvement in the quality of the information submitted to OSHA, and 3) improving worker safety by making the data publicly available on OSHA’s website so that workers would know which employers are more dangerous, and good employers can compare their safety and health records with other businesses in their industry.

Because OSHA actually has to change the regulation to delay the dates, today’s announcement is a proposal and OSHA will accept comments on the delay for two weeks, until July 13, 2017. You may submit comments and attachments electronically at www.regulations.gov. There should be two messages:

Implement the reporting requirements with no further delay.

Do not change the anti-retaliation provisions. The record is full of examples of employees being retaliated against for reporting. Employees have a right to report injuries and illnesses without fear of retaliation.